Tuesday, 11 November 2014

I’m reading tonight about the concerns of
doctors and the outgoing Chair of the Motor Accidents Solicitors Society about
the new “whiplash panel” to be run by the reporting organization, MedCo.

This is the new ‘independent’ panel of ‘experts’
that will properly assess the impact and effect of soft tissue injuries,
including whiplash which has so long been the bane of insurers who prefer to
pay up on small claims, moan about fraud and say the only solution is to scrap
all small claims regardless of the merits.

The costs of setting up this ‘independent’
panel is being funded by insurers. Smell a rat yet?

James Dalton of the Association of British
Insurers (“ABI”) reportedly told the MASS conference how the lack of objective
testing had led to an increase in fraudulent claims.

‘Developing an IT system that randomly
allocates independent and accredited medical experts to claimant lawyers is
critically important in working towards the delivery of fundamental reform of
the medico-legal reporting system’, Dalton explained.

In They walk among us at the start of this year I posed the question of “who will
(truly) be controlling the selection of “experts” appointed to the new whiplash
panels the MOJ is now proposing…”

Well now you know.

What will be the criteria for membership of
these panels apart from paying a fee to join? Well, the main one is likely to
be the one that insurers apply to every aspect of which they have seized
control.

Cheap as chips – and I mean the nastiest,
tasteless fries you can find.

It’s not just the ‘economies of cost’ that
the Ministry of Justice (cough) so applauds – popular with the populace – but the
consequential savings in compensation that worthless reports from worthless ‘experts’
will ensure.

Insurers will invest in this system and make
it a success in the misty eyes of the MOJ and their chums in the present
government so that, like the costs portals, it can be extended to reporting on
a wider range of injuries.

No decent lawyers, no decent medics. Anything
else you want James? No claims?

Thursday, 16 October 2014

As I left court last Thursday afternoon,
I was feeling genuinely sorry for my unrepresented opponent. We both were.Well, in
his case it was more angry than sorry.

He should never have been there,
let alone on his own, if he had anything approaching competent advice from the
“business finance consultants” who decided to have a play with some statutory
demands.

Now, as most commercial
litigation lawyers will know, statutory demands are tricky beasts. In the right hands they can get the job of
recovering money done very quickly and effectively. In the wrong hands, they can blow
up in your face, figuratively speaking.

The mature and personable
tradesman who turned up as respondent to my applications to set aside two
statutory demands saw it all as very straightforward. He had done a job of work, charged what he
thought was a reasonable price and had not been paid. It was not a problem he had ever encountered
before, he said.

That was too simplistic a view on
any analysis where there was an argument about the price of the work done which
was not agreed before the work started and was more than anybody expected
because of unforeseen complications in the job.

Worse than that, because those
who were not at my opponent’s side in court have so inflamed the situation,
the customers had chosen to follow my advice that the contract is probably
unenforceable because of non-compliance with the Consumer Contracts Regulations 2013.

The fact is, though, that in
another scenario the tradesman could have had his day in front of a judge keen
to listen to all that he had to say and look at all the papers and photographs
he had to show, none of which either the court or I had seen at any earlier
stage (despite requests).

In fact, the judge was very
patient - and entirely with my blessing.
Whilst he explained at least three times the difference between the
insolvency proceedings and “the normal route in the county court” these things
simply do not resonate with many non-lawyers.

It certainly did not strike a
chord with the respondent when the judge concluded that “this case should never
have proceeded by statutory demand” and added comment about “high risk
strategy”.

The real villains of the piece
were absent - the professed recovery specialists who lit this particular
firework. You could not make it up…

It is as clear as day from the
unusually detailed and rambling narrative on the statutory demands that they
were aware of the full facts of the case including, seminally, the dispute over
the price. At the heart of it all there
was even an issue as to whether an invoice had ever been delivered.

It was telling in that respect
that no copy invoice was attached to the statutory demands –not the original, nor
the alleged replacement said to have been produced after attempts to negotiate
the price.

Well that would be enough, but
why skimp on the job? The moldy icing on
this very stale cake was as follows….

First, both demands were unsigned
– it is a mandatory requirement that they should be “authenticated” under the
Insolvency Rules 1986 as amended in 2000.

Secondly, approximately a quarter of the sum demanded comprised interest, penalties
and costs under the Late Payment of
Commercial Debts (Interest) Act 1998 (“the 1998 Act”).

For anyone who is not familiar
with those useful regulations, they are as the name implies relevant only to
commercial debts i.e. business to business.
They have no place in a consumer contract for work done at the
customer’s home.

As a matter of interest, the debt
collection experts thought it warranted £350 plus VAT per demand to produce these unsigned documents and then put them in
the post – not even bothering with the usual niceties of personal service.

And that’s not all. On top of that meaty
figure, there was a claim in each demand for almost as much again in “commission”.

Then we have the statutory
penalties (not an alternative to recoverable costs under the 2013 Late Payment
Regulations) and interest under the 1998 Act.
None of it had any place in this arena.

A month before the hearing, we
wrote to these jokers and in the course of two pages we set out all the
objections to their inept offerings. We
respectfully suggested that they abandon the demands and agree to pay our
clients’ costs which at that point were a modest £300 plus VAT.

Their response was to acknowledge
the point about the 1998 Act and say that they would abandon the claim for a
few pounds of interest, but not the costs (no I don’t understand either) but
otherwise insist on payment in full of the original disputed price and all of
their costs.

Last week their unfortunate ‘client’
left court no nearer - in fact further away from – recovery of his unpaid bill of over £2000 and a court order to pay almost as much again for the costs of our applications,
within 14 days.

He could not begin to understand
how he was in that position. These
people had been recommended to him by a friend.
He pays them £30 per month retainer and when this problem arose he
handed it to them – the professed “experts” – to deal with. When it started raining, they cleared off and
took the umbrella.

Today I see an article in the Solicitors Journal reporting that courts are ‘rapidly becoming
lawyer-free zones’ and (rightly) lamenting the situation. Some litigants are
turning their backs, others chancing their arm and people like this poor guy
turning to (seemingly) cheap muscle-heads who really don’t have a clue about
the law.

It’s not just a case of another
litigant in person doing his sincere best but ultimately wasting everybody’s time
and his own money. What’s really disturbing
is that this man was led to that position and left there alone by the vultures who
saw only an opportunity to demand exorbitant sums in costs from my clients with
entirely inappropriate menaces.

Yet another example of where our
civil justice system is heading - thanks to the idiot with the “Lord
Chancellor” badge.

Thursday, 2 October 2014

Did a little beach-combing on my
desk yesterday – part of the endless war on paper that the rest of the world
generates.

I have been wondering for too
long what to do with the rather forlorn response I had from the Black Horse to
a letter of complaint last month. Background to that was the time and effort we
wasted trying to establish the value of a prior charge on a property even after having been forced to obtain
a court order for disclosure because of pleas of “confidentiality”.

I am happy to debate with anyone
who has had similar problems the standard unhelpful resistance of all financial
institutions to such requests notwithstanding Section 35 of the DPA.

We have become accustomed to the
type of reply, not necessarily from this bank but from any of them, that
defends the indefensible and so the following came as quite a surprise:-

“I accept that this is an unacceptable time
delay and I offer my sincere apologies.Your
comments have been noted and we will take
your case as a learning example.

I am sorry for the
delay your firm experienced on this occasion and I hope that we can do better in the future.”

Strewth. To be perfectly honest, I am not
filled with optimism but we shall see.
If the writer had added “here is a cheque to cover your client’s wasted
costs and we don’t want to write too many more of these”, then I might start to
believe.

The next piece of flotsam is
something I expect to see more of in the coming weeks as a new piece of
litigation kicks off.

This is the three line letter
whose content is quite unremarkable and which I have already had by email. Judging by previous experience, the absence
of a faxed copy is probably an oversight.

As ever, the postal copy has now arrived,
all half a page of it on A4. Why go half
measures and fold it into a small window envelope when you can send it in a
full size A4 envelope and pay 76p postage on top of the unnecessary stationery
and handling costs.

I am sure that philosophy would
gain approval from some local colleagues, with whom I have regular email
communication. One of their number
obviously still thinks it is better to spend money on paper and postage to
manufacture two days delay for a routine (but arguably overdue and awaited)
communication to reach us.

The most amusing aspect is the
distance between each firm’s office, the post office, and each other’s
office. I would guess that it’s less
than 100 yards whichever side of the triangle.

Perhaps the most disturbing items
arrived yesterday. These were notices
that acknowledgments of service had been filed in proceedings that we recently
issued and served.

Nothing wrong with that at first
blush. The slightly curious point is
that we had identical notices just under a week ago.

Those came from Exeter, as we
rather expected. I remember a feeling bordering
on pleasure as I signed the covering letter to the court – that this was a
technology and construction claim that we did not have to send to the fun
factory in Greater Manchester.

The odd thing is – and maybe I
should know better – that today’s (unnecessary) notices duplicating those
already received last week from Exeter appear to have come to us all the way from
Salford.

Yet more easy money, at taxpayers’
expense, for the mail service that we allegedly flogged off at an
undervalue. But why is the CCMCC, that
ordinarily cannot do anything less than eight days behind schedule, spending
time and money unnecessarily not quite replicating the perfectly acceptable
service so far provided by the Devon court?

I am wondering now if we shall
receive a third set, if not from Salford then maybe Northampton (probably
around Christmas) – or perhaps Staines. Don’t ask me for an ETA on that one.

Meanwhile, my email to another
opponent has been acknowledged in his absence by someone who tells me it will
be put on his desk for attention on his return.

Wednesday, 24 September 2014

I haven’t blogged for a few weeks. Some may
say that’s a good thing – I’d certainly like to think so!

The holiday season seems to get longer each
year and brings its disruptions, which we all welcome at some stage hopefully,
even if we pay for it before and after.

Then there are the unwelcome distractions – the unnecessary problems that just devour
time and energy – the irritations we could well do without.

For me as a litigation lawyer, many of those
are down to our ravaged court service – not the individuals within it but the beleaguered
and increasingly impotent sum of those wretched parts.

As just one example I’d like to share with as many
people who care enough to read it the text of a letter I sent to Northampton
County Court (the online and bulk claims centre) today in answer to what I
would describe as a wet and evasive response to my latest complaint about their
handling of one of our current cases:

“Thank you for your letter of 4
September.

The summary at your third
paragraph is broadly correct. What it
omits to mention is the initial delay of a month to process our application for
a simple consent order - for it was submitted at the end of May 2014.

Altogether it took eight weeks
for you to deal, by a process of (wrongful) rejection, with a simple consent
order for payment of a substantial sum of money – important to a commercial
operation – that would generally be expected to be paid within fourteen days.

Let me observe at this point in
case it does not dawn on anybody in Northampton that this sort of thing has a
real impact on industry and commerce in this country. The sort of delays that you are generating at
your office, as are Salford and other courts, are depriving people of a legal
remedy and enhancing the risk of business failures. Please escalate that observation to people
who might persuade others to do something about it.

After 13 July you then took
nearly three weeks to acknowledge our letter complaining about rejection. It then took another three weeks plus for the
matter to be dealt with.

We have come to expect when we
complain about delays at courts that the recipient will look keenly for an
opportunity to say that the problem was “judicial” and not administrative. We have seen this in the fourth paragraph
with your explanation that “court staffs (sic) are not legally trained”.

We don’t accept that this was a
judicial decision. Why would a qualified
district judge make so bizarre an observation as that it was not clear whether
the claim had been served (after filing online, the fact of a defence having
been filed, etc) if he did not have the file in front of him. That suggests to us an administrative failure
– another one.

I am not convinced the
explanation is high volumes of work.
Probably more pertinent are low volumes of resource. We have sympathy with individual people who
work in your offices but this is a major problem and we cannot let it pass
simply because it means decrying the efforts of those who are probably doing
their best in difficult circumstances.

The plain fact of the matter is
that the service is not good enough. It
is far from it. Over thirteen weeks – a
quarter of a year - to seal a judgment for an agreed sum of about £30,000 in
terms endorsed by both parties’ solicitors is simply atrocious.

The points I raised did not need
“clarifying”. If you mean to suggest that they have been satisfactorily answered
then I have to tell you - no, they haven’t.

There is nothing here to
compensate for the delay, reassure us for the future or give any indication
that people within the Court Service recognize that it cannot go on.

How can that be achieved
please? A willingness to meet some
wasted costs at this end, without quibbling over pennies as the Court Service
invariably does when the subject is raised, would be one element of a
successful response to this complaint.”

I’m not
hopeful. At best I expect to receive notification that if I want to complain
then….etc – as if I’d just so far hinted that we might be wondering whether or
not to say something.

At the next
stage some clever trousers, possibly sporting an OBE or similar, will be wheeled
on to deliver a lecture about how judicial decisions are only vulnerable to
appeal and we must….(yawn).

Nobody will
write and say “You’re right – we’re sorry – we agree something must be done”.

Saturday, 2 August 2014

I fear we shall soon be seeing a
lot more reports such as the one I read of an application allowed by the Court
of Appeal last Tuesday. I have not yet
seen the full judgment, only a case summary, but you get the flavour of things
from key phrases within the head note:-

“A judge’s belief that he was hearing the
full trial of a claim...when in fact liability had already been decided...amounted to a
serious procedural irregularity.”

Clearly it was a complicated
case.The claimant had been a trustee of
a charity which he alleged owed him some money during his period of
office.Initially a judge had decided
that the charity was liable and directed a hearing to decide for how much.

Subsequently the former trustee
issued a claim for further sums that had come to light.The charity tried to set aside the earlier
judgment but that, a counterclaim and three further defences were all struck
out.

Somehow it came before another
different judge who seemingly started from scratch, considered all issues and
decided that the claim failed in its entirety.He did not know that liability had already been decided and that other
judges had limited and defined the issues on quantum.

I find it bizarre that this sort
of thing can happen.Again, the finger
points first at the court and what must be an inadequacy of records and
management.Shortcomings are rife now,
whatever the Lord Chancellor and his friends would have you believe – see Grim fairytales.

But would all of this have
happened with professional legal representation on both sides or even either
side?I think not.

The fact is that at the ill-fated
trial, the claimant appeared in person and the defendants had a McKenzie friend assisting them.

For those who don’t know what
this means, it translates roughly to somebody who is not as bamboozled and
bewildered by the court process as the person that they are permitted to
assist.

The result is a complete
farce.With the assistance of a
barrister, on ‘direct access’ (i.e. cutting out a solicitor intermediary to
keep the cost down), the claimant has taken it before three Lords Justice of
Appeal who have set the decision aside.Now after the expense of that trip it goes back to the original court
for yet another hearing.

Who knows how long ago it would
all have been resolved with proper representation on either or both sides?

Who knows how long ago it might
have settled with a bit of
professional knowhow and input?

Things are only set to get worse
as Pinocchio Grayling hacks away at resources and tells the world that we are
“maintaining and improving”.He is assisted
of course by his chums in the insurance industry telling us that the new
“clever” is dumb and there is not much law involved.

Catastrophic and injury claims
technical manager at AXA insurance, David Fisher, is reported to have told the Jaggards and Taylor-Rose Law Costs and
Litigation Conference the week before last that:-

“The more intelligent law firms are dumbing
down.Most personal injury claims are a commodity and don’t require a great amount
of law”

I have seen at first hand some of
the dumbed down work that does not require a great deal of law conducted by one
of the outfits Mr Fisher had in mind when he made that remark.

See Cleaning bills and the case where one of our “more intelligent”
predecessors tried to settle the claim for first an eighth and subsequently
half of the value that we subsequently recovered.

Somehow it’s now clever to be
incompetent.The insurance industry has
always treated victims and their claims as “a commodity” and will obviously
continue to promote these factories full of cheap operatives who can barely
spell “law” let alone apply any great amount of it.

It’s a self-serving, cyclical and
arrogant view that cares nothing for the destruction of our legal system and
everything for shareholder returns.

We shall increasingly see the
courts clogged up with nonsense such as the Court of Appeal had to unravel last
Tuesday.The problem will be further
aggravated by the departure of many judges who don’t need the hassle, and can
derive neither satisfaction nor pleasure from the job any more.

It will be the same everywhere as
the capable folk with a vocational outlook handover to the lunatics – until there are no more heroes.

Friday, 18 July 2014

My eye was caught this morning by
a link to the recently published Annual
Report and Accounts from HM Courts and Tribunal Service.

In his foreword the Chief
Executive trumpets “another challenging but successful year in which our performance
has been maintained or improved at the same time as we continue to reduce our
costs.”

He is backed up by similar stuff
from the Chairman noting that HMCTS “has continued the success (sic) of the
previous two years by delivering improvements in its performance (sick) whilst
lowering operating costs”.

All of this is covered on the
first page by gushing delight and “sincere thanks” to each individual member of
staff of the entire service from the Lord Chancellor and chums.

I really do not need to read any
more of this tosh. Who do they think
they are kidding?

Earlier this week, a mercury
switch on the “where’s my Uzi?” circuit board tipped violently with the arrival
of post from some of our favourite courts.

This week’s top prize goes to
Northampton and for those of our readers who may be confused by
that reference I am talking about the Northampton that is in Northampton, not
the Northampton that is in Salford (more of that below).

We are dealing with the County
Court Business Centre at the moment in a case that our claimant client chose to
begin by filing proceedings online. A
defence was filed in what on the face of it was a multi-track case and at that
point we were called in.

Within a fairly short period of
time we were able to achieve agreement with the solicitors for the defendant
that more than 75% of the substantial debt was not actually in issue and that
there should be judgment, by consent, for that much. More than that, we quickly agreed a draft
order which was sent to the court, with the appropriate cheque, on 23 May 2014.

We know that the cheque was not
presented until 30 June. Two days ago we
had a short letter telling us that the application had been deferred saying it
was not clear what the parties intended but above all posing the question “has
the claim been served or not?”

Well let’s just analyse that
shall we? The claimant filed details online
which means that the court office would have printed a claim form and sent it
to the defendant. Somewhere along the
line, for whatever reason, the defendants sent a defence to the court as a
result of which notice of allocation was issued.

We think all this points fairly
strongly to a presumption that the proceedings had been served.

We waited EIGHT WEEKS for that.

In the same post came Salford’s
latest bid for stardom. Tame effort this
time but still deserves a mention. Another case where we have agreed an order
with the opposition (you can tell we really do our bit to relieve the pressure
on resources).

We had agreed and submitted an
order for stay on the terms set out in a separate schedule i.e. two pieces of
paper. We get back the now typical “Order
that: 1. See attached” with a sealed copy of the schedule – but no order.

Finally, let’s not forget Staines
County Court which is probably going to earn a place in its own private
hall of fame. Delegates at the APIL
annual conference at the beginning of May who were still there on the afternoon
of the second day may remember the horror story I told then about our
current litigation in this Outer London flagship.

There is not time here to screen
the full version which now comes with intermissions and ice cream. Suffice to say that after we have filed two
notices of acting, sent a number of letters including complaints and talked on
the telephone to the court administrator in Kingston, this wretched office is
still – without a shred of explanation – sending all communications direct to
our client who has now become used to the idea of scanning and emailing them to
us.

She is quite prompt to deal,
unlike the court. We are still waiting
for formal notice of issue of a counterclaim that was sent, along with the
defence, in mid-February.

There is a glimmer of hope where we have now had notice (via our client of course) that there will be a
telephone CMC at the end of next month.
This follows notice (to our client) that all directions had been
cancelled and trial date vacated but we don’t currently know the reason for
that either.

It may be that our colleagues on the other side have written to say
that they do not know when the counterclaim was issued, what was the date for
service of the defence and cannot be clear about various consequences that flow
from that.

Elsewhere in the office, it is
now routine for members of our non-contentious team to explain to people who insist that
they urgently need a lasting power of attorney executed and registered that it
is very unlikely that they will get it done inside 14 weeks.

Why not? The Office of the Public Guardian staff will
tell you that they have a target time of 4 weeks for dealing with registration and
that they are meeting it.

What the OPG will not tell you is
that they put the post in a pile for 10 weeks and do not open it so that their
4 week target period does not actually begin. One of my consultants had a client
who died 5 weeks after submission of the LPA, at which point she was still
waiting for an acknowledgment from the OPG.

Elsewhere a routine claim for
repayment of a few hundred pounds pension to a deceased’s estate seemed to us to
be taking a long time. When our staff
managed to get through to the DWP on the telephone they were told that they are currently working
on post received two months earlier and where our application had only been
received 4 or 5 weeks prior to the call, they could not possibly say when it
would get dealt with.

So, Lord Chancellor, Lord Chief
Justice and the rest of you – don’t tell us that “services to the public are
maintained to a high standard” and about the “continued drive to improve case
management”.

I cannot recall at any time in
recent history picking up a piece of post or other communication from a
government office and thinking to myself “that was quick” or “that was
easy”. The only possible exception to
that would be the speed with which some of the paperwork comes back from some
of our local courts.

Ironically, that is probably
because they have so much less to do nowadays whilst we wait two months for a
straightforward consent order signed by two firms of solicitors to be shunted
back to us with a nonsensical explanation for its rejection.

Meanwhile, the architects of this
mess are entertaining the rest of the world with works of pure fiction.

Thursday, 29 May 2014

If you are not convinced that we have a crisis in our health service then have a read of this…

We have recently taken instructions from a man who was involved in a road traffic accident at the beginning of March.

Our client, as affable and easy-going a 64 year old man as you could hope to meet, was knocked off his bicycle, not far from Axminster at around 5.30 on a Friday evening. His bike was wrecked. Fortunately he wasn’t.

Comparatively minor injuries to ribs and one knee but still serious enough for the ambulance crew that turned up at the scene to decide that he needed to go to hospital. Off they went, to Honiton.

When they got there, a little after 6.00 in the evening, the hospital was shut. As far as our client could see there was nobody there at all, and sadly the paramedics seemed to accept that there was no-one about to dispense urgent medical treatment.

So, what next?

Oh – look at the time! “It’s the end of our shift,” they told him – “you’ll have to find your own way home”.

And – yes – would you believe it, they left him and his bent and twisted bike in the car park outside the hospital and disappeared off to wherever they might be headed at that time on a Friday evening...

Admittedly our man was not bleeding to death on the steps of the (closed) hospital but he had been knocked off his bicycle by a motor car less than an hour earlier and he is only a year from retirement.

If the ambulance crew did not feel that he needed hospital attention then why bother to take him (and his bicycle) there? In any event, why didn’t they know that Honiton hospital was or would be shut?

As it was, our man went to Yeovil District Hospital the following morning, complaining of pain still in his ribs. He dared to suggest to the doctor who examined him that one or more of them might be broken and he should have an x-ray.

“Oh no – we don’t do x-rays on ribs anymore”, he was told.

But the staff at Yeovil were reportedly shocked at how this elderly man had been dumped in the car park to fend for himself the night before.

We are dealing with his claim now. Incidentally, he did not come to us immediately after the accident until after he had a series of telephone conversations with the car driver’s insurers. It seems they spoke to him at least a couple of times with increasing offers of immediate settlement...

So, claims capture and pre-med offers are still alive and well despite the top boys’ roasting almost a year ago – see Hey diddle diddle.

Not this time then guys. Perhaps when insurers’ PFI mates have taken over the running of our hospitals and emergency services they will have more success.

Paramedics will no doubt be trained to leave the back doors of the ambulance open and threaten to push the trolley out if the accident victim does not quickly sign a disclaimer in return for a fortnight’s rehab and a bunch of flowers.

Friday, 9 May 2014

The stupidity of this
government’s attempts to save money by denying ordinary people legal
representation is starkly demonstrated in a short judgment handed down by the Court
of Appeal yesterday.

The case involved litigants in person i.e. people who are
unrepresented normally because they cannot afford to be. Plainly, there were problems with the
document bundles in particular, and Lady Justice Black took time out to say
this:

“This case is
illustrative of an increasing problem faced by this court. More and more litigants appear in front of us
in person. Where, as here, the appellant
is unrepresented, this requires all those involved in the appeal process to
take on burdens that they would not normally have to bear. The court office finds itself having to
attempt to make sure that the parties to the litigation are notified of the
appeal because litigants in person do not always know who should be
served...... the bundles that the court requires in order to determine the
appeal are often not provided by the litigant, or are incomplete, and proper
papers have to be assembled by the court, not infrequently at the request of
the judges allocated to hear the case when they embark on their preparation for
the hearing just days before it is due to start. The grounds of appeal that can properly be
advanced have to be identified by the judge hearing the permission application
and the arguments in support of them may have to be pinpointed by the court
hearing the appeal.

The court has
no extra resources to respond to these added challenges.......if it is to be
able to deal properly with an appeal in care proceedings and to do so
speedily.....then local authorities will have to expect to assist by ensuring
that the court is provided with appeal bundles...... it is so frequently the
case that the papers supplied by the appellant are deficient that it should be
standard practice for the local authority to take steps itself, well in advance
of the hearing, to consider the appellant’s proposed bundle and, if it is
deficient or apparently non-existent, to contact the court to see whether it is
necessary to supply alternative or supplementary bundles.

I said more
about the cost to individuals and to the legal system of the absence of legal
assistance in Re O-A, a private law children case decided on 04 April
2014. Everyone involved in public and
private law children cases is attempting to achieve the best possible result
for the children whose welfare is at the heart of the proceedings and, without
legal representatives for the parties, that task is infinitely more difficult.”

For those who aren’t involved in
this sort of thing every day, let me tell you that the preparation of bundles
for court hearings, particularly appeals (where routinely the history of
proceedings in one or more courts below is being considered) is a vitally
important task.

It is not just a matter of
throwing everything you can find in to a lever arch folder and sending it to
the court. It involves deciding what is relevant
and what isn’t, grouping the documents, putting them in a logical order,
dividing into sections, making sure they are technically admissible, that they
are legible, that they are numbered and bound in a way that makes them secure
but accessible.

They need to be agreed if
possible between parties with competing interests and identical copies need to
be prepared for (usually) six or more people involved in the process, so that
they are all looking at the same thing and not wasting time getting there.

So here is a situation where
because those who ought to be dealing with the task can’t, it falls on the
publicly-funded local authority to do it.
That means more expense in that task alone.

Own goal, Mr Grayling!

Of course, the deficiencies may
not come to light until very late in the day in which case there will be
adjournments or hearings taking far longer than they ought to because of the
unavailability or poor management of the document bundles. More expense results.

Another own goal, Mr Grayling!!

Remember, we are only talking
about bundles of documents here. We
haven’t touched upon all the other difficulties that arise by virtue of people
not being represented.

Even with knowledgeable and
capable parties, perhaps employed in other professions, who make a good attempt
at presenting the case, there will be considerable further time spent because
they are simply not aware of the procedures.
It’s DIY enthusiast (perhaps not the best term) versus skilled
tradesman.

In the worst scenario, there are
parties who have no clue where to start, don’t want to be there and whose only
mission in life is to make that clear to everybody else involved in the
process. They have no lawyer to tell them and keep telling them that it is in
their best interests to do this and that and to lead them skilfully through the
process. Consequently it takes judges
and other parties longer and longer to deal with these matters.

Yet another own goal, Mr
Grayling!!!

And this is just the short
term. What does the longer term hold?

You can see in this short
judgment extract the expectation that the government funded party will do the
work, even though it is not their responsibility. It will not be long before courts take the
“government” out of that classification and extend this routine requirement to
all “funded” parties.

In other words, the burden of
doing all the work, regardless of which side ought to be doing it, will fall on the party who happens to be able
to afford representation to run the case.

That will happen regardless of
whether they can only just afford to
do it, how much of a risk they are already taking in short term cash flow or in
the long run. They will be expected to
pay to run the case, not just for themselves but for the other side.

Lawyers acting for parties who
find themselves having to prepare half of the opposition’s case will have to
charge more. Many of their clients will
then say they cannot afford it, and quite possibly that they are not prepared
to fund it as a matter of principle.
What will that generate?

Yet more litigants in person.

And another own goal. It’s becoming a landslide, Mr Grayling!!!!

The cynical amongst us will of
course say that this represents another deliberate smashing of the altar with
the long term plan that the adversarial system, where the parties before the
court set the pace and have their say, will become unworkable.

Wednesday, 30 April 2014

There are so many examples of
what follows day to day that we are in danger of thinking that it has become
the norm. This is one of too many at the moment though.

We have sent what should be a
fairly routine case for issue at that high-tech hub in Salford, the County Court
Money Claims Centre. Client is trying to recover a debt from a limited company,
failing that from one or other or both of the husband and wife directors who
have guaranteed their company’s liabilities.

As in so many cases, we ignored
our programmed reminders to chase the court for a notice of issue. We have not quite yet conceded defeat and
amended the software programme but more often than not now we give it another
couple of days because of the grudging acceptance that it takes over a week for
this centre of excellence to even get the details of new matters loaded “on the
system”.

In this case we had a telephone
call last week to tell us that we would need to make an application. Why?

The explanation was that we are
trying to issue against the company at the same address as the guarantor
defendants. It is a residential
address. Yeeees...

We are not given any explanation
by reference to rule or practice direction.
We are just told that we will have to supply a different address or make
an application.

Following discussion with a
deputy district judge, the staff member tells us that we ought to know the rules. The advice from the DDJ is to consult amongst
other things “The Green Book”.

What – you mean the County Court Practice that was rendered
largely if not entirely obsolete about 15 years ago?

Perhaps he had in mind the HM Treasury guidance for public sector bodies on how to appraise proposals before committing funds to a policy, programme or project.

Or more likely Government guidance on vaccination against preventable infectious diseases in the UK.

Either would be more apt in context.

So we are still not given chapter
and verse as to why the court office sees fit to ring us up and tell us that we
have the wrong address for service on the company. We have helpfully drawn attention to the fact
that this is the registered office address, whatever else they might think.

They check that now and yes it is
all fine...

Well what a waste of time that
was (again). And now we have notices of
issue confirming that the proceedings were indeed commenced one day last week.

Only trouble is that all
three notices of issue have gaping blanks for the date of posting, the date of
service and the date by which the defendant has to respond.

Another letter, and another long
wait, another string of telephone calls where somebody has to speak to a
resident judge who will perhaps suggest that we should instinctively understand and accept
responsibility for them getting it all wrong.

We can expect this to be hailed as a success story and justification for the assaults on the rights and capabilities of accident victims to pursue claims for compensation.

It won't just be the historic attacks that are justified but those to come. Insurers will point to this as a trend and say there is more good work to be done.

Hang on...

Let me say first that I'm suspicious of the statistics and propaganda to date but frankly there is traditionally so much spin from the liability insurers that it's a huge chore to analyse it. Meanwhile, most of us want to look to the future for all good reasons.

It's far more important in that context that the industry and the market is not sucked into some sugary sweet belief that the future is all rosy now and we can trust the ABI to keep steering us to insurance Nirvana.

At a conference in Chelsea just over a fortnight ago - see yesterday's post - I met and listened to David Williams of AXA on this very subject. Whether or not he realises it (we've clashed many times on Twitter) I recognize him and the company he represents as having a good deal more integrity than most players on the Dark Side.

I heard the view he expressed two weeks ago about the likelihood of current levels of premia being short-lived. Those comments were recalled in a brief exchange we had later.

I don't doubt that David Williams and AXA have their fingers on the pulse and if he is willing to say, in the face of sceptical accusations that it's all short-lived, that it is - then I find it difficult to believe otherwise.

So - look out for the ABI hype on the back of today's story and reflect. Better still, spread the word.